Nicholas v Jimenez (2) [2020] NSWDC 187

District Court New South Wales

Medium Neutral Citation: Nicholas v Jimenez (2) [2020] NSWDC 187 Hearing dates: 24-25 February 2020, 03-05 March 2020 Date of orders: 11 May 2020 Decision date: 11 May 2020 Jurisdiction: Civil Before: Weber SC DCJ Decision: (1) That the order made on 7 November 2019 appointing Taleigha Jones as tutor of Dianne Nicholas be vacated; (2) That there be judgment and verdict for the defendant; and, (3) That the plaintiff pay the costs of these proceedings on a full indemnity basis. Catchwords: PRACTICE – Removal of tutor – no justification for the appointment of the tutor

COSTS – Indemnity costs – plaintiff to pay defendant's costs – evidence of unreasonable conduct on behalf of the plaintiff Legislation Cited: Universal Civil Procedure Act 2005 (NSW) Cases Cited: 3WJ Pty Ltd v Kanj [2008] NSWCA 321 Murray v Williams [2010] NSWSC 1243 Rozniak v Government Insurance Office [1997] NSWLR 608 Stokes v McCourt [2014] NSWSC 61 Category: Consequential orders Parties: Dianne Nicholas (Plaintiff) Leanne Jimenez (Defendant) Representation: Counsel: Ms E. Welsh (Plaintiff) Mr G. Watson SC with Ms C. Allan (Defendant) Solicitors: Bryden's (Plaintiff) Hall and Wilcox (Defendant) File Number(s): 2018/207435 Publication restriction: None

Ancillary Judgment 1. On 31 March 2020 I delivered judgment in these proceedings and indicated my prima facie inclination to order: 1. That Taleigha Jones be removed as the plaintiff's tutor; and, 2. That the plaintiff pay the defendant's costs on a full indemnity basis. 1. I shall refer to these matters as the "outstanding issues". 2. These orders had been sought by the defendant during the hearing of the matter, but the plaintiff's counsel justifiably considered that she was not in a position to deal with the outstanding issues at that time, that is to say, before judgment. 3. In the principal judgment, I indicated that if the plaintiff wished to be heard in relation to the outstanding issues, she should indicate that desire by communication with my associate. This occurred, and I made orders in chambers for the exchange of written submissions in relation to the outstanding issues, on the basis that I would decide the issues on the papers.